Sunday, March 18, 2012

We see numerous cases where there are allegations of wrongdoing in civil litigation. However, a recent probate case turned criminal.

On February 13, 2012, the Ventura County District Attorney's Office arrested Geoffrey Charles Sjostrom (DOB 09-25-1954), of Simi Valley, and charged him with nine felony charges, including grand theft, perjury, forgery, and the aggravated white collar crime enhancement. His bail was initially set at $200,000.

The criminal complaint alleges that Mr. Sjostrom was a friend of Francis J. Copland, who died in 2005. Before Mr. Copland died, he prepared a trust and a will, naming Mr. Sjostrom to administer both. In his estate documents, Mr. Copland left all of his property to family members. After Mr. Copland's death, it is alleged that Mr. Sjostrom failed to probate Mr. Copland's will and failed to properly account for Mr. Copland's trust property.

The probate court removed Mr. Sjostrom as trustee and ordered him to account for Mr. Copland's property. At that point, Mr. Sjostrom allegedly filed a sworn declaration claiming Mr. Copland had exhausted his bank accounts when he died. A successor trustee was appointed and discovered this information was false.

The successor trustee found that Mr. Copland had money in various accounts when he died and that then trustee Mr. Sjostrom methodically took more than $250,000 from those accounts by means of check and ATM withdrawals.If convicted of all charges Sjostrom faces up to 11 years in state prison.

Attorney Commentary: Thus, it is critical to remember that basic criminal law can come in play in civil cases -- especially where there are allegations of misappropriation of funds or pleadings filed under the penalty of perjury. If at certain points in civil or probate litigation there is criminal exposure, it may be time to seek consultation from a criminal attorney and determine when it is time to exercise one's Fifth Amendment rights or attempt to resolve the litigation in order to minimize criminal exposure.

Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation.

The firm focuses its practice on the representation of businesses and licensed professionals, individuals and businesses in civil, administrative and criminal proceedings. Their website is: http://www.greenassoc.com/

Thursday, March 15, 2012

A recent case shows the interplay between the buying of insurance information from low income or government insured people (Medi-Cal and Medicare cards) and using that information to obtain prescriptions for opiate drugs. This case illustrates how this type of insurance fraud turns into selling prescription opiate drugs on the black market or street.

On February 24, 2012, George Randolph, 63, of Los Angeles, pleaded guilty to one count of felony insurance fraud. Mr. Randolph was arrested in November 2011 and was accused of being a “capper” or marketer. It was alleged that he recruited people from sober living houses – offering participants $50 for their insurance information for the purpose of seeking fraudulent prescriptions of opiate pills. Mr. Randolph entered into a plea agreement in lieu of trial. It was alleged that Mr. Randolph recruited people from substance abuse sober living halfway houses by offering them $50 for their Medi-Cal and Medicare insurance information. With this information, he obtained fraudulent prescriptions for oxymorfone narcotic opiate pills with a street value of $60 per pill. Mr. Randolph was in possession of the illegal pills and a counterfeit prescription when he was arrested on November 16, 2011.Los Angeles Superior Court Judge David Horwitz immediately sentenced the defendant to four years in state prison. This was the term agreed upon in the plea agreement. It was a high sentence because Mr. Randolph had two prior felony robbery counts. The case was investigated by the California Department of Health Services. The prosecution was by the Healthcare Fraud Division of the District Attorney's Office.Attorney Comments: A case like this can lead to other criminal cases. For example, how did Mr. Randolph use the Medi-Cal card and insurance information to obtain a prescription from a physician? How did Mr. Randolph decide what pharmacy to use? Often physicians and pharmacies can get caught up in these cases and they both need to be aware of the fraud in the community and to have safeguards and controls to eliminate the risk of fraud in their practices. Moreover, if there are government requests for interviews or documents, it is critical that there be representation by counsel in order to determine whether you or someone in your office are considered a potential target of the investigation.

Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260to schedule a complimentary 30-minute consultation.Any questions or comments should be directed to Tracy Green, a very experienced insurance fraud attorney and kickback attorney. The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing licensed health care providers in criminal matters in California and throughout the country. Their website is: http://www.greenassoc.com

Thursday, March 8, 2012

Doctors who prescribe pain medication have been given a warning shot by the Los Angeles County District Attorney's Office with an aggressive prosecution that made news across the country.

On March 1, 2012, the LADA's Office issued a felony arrest warrant for Hsiu-Ying ("Lisa") Tseng with a $3 million bail request. The felony complaint has three felony counts of second degree murder relating to the deaths of three young men (ages 21, 25 and 29) approximately three years ago. In addition, Ms. Tseng was charged with one felony count of prescribing drugs using fraud (Health & Safety Code Section 1173(a)) and twenty felony counts of prescribing drugs without a legitimate purpose (Health & Safety Code Section 1153(a)). The case is pending in Los Angeles County Superior Court.

In order to prove second degree murder, the prosecution will need to prove implied malice. The prosecution's current theory is that Ms. Tseng had at least one other patient who died from an overdose before these three other patients die and she was aware that prescribing certain addictive prescription drugs as pain killers could cause overdose deaths. This will not necessarily be an easy theory for the prosecution.

Since this case has had a lot of coverage, what do I find notable about it? First, the case has gone on for almost three years after the deaths of these patients. The search warrant relating to these patients was in August 2010. Thus, these cases take time.

Second, the interplay with the Osteopathic Board is interesting. The Board had filed an Accusation and a Second Amended Accusation against her. On February 29, 2012, Dr. Teng and her attorney signed a Stipulated Settlement surrendering her medical license. The next day the felony complaint was filed. I question whether Ms. Tseng knew that this was coming since the investigators in the criminal case are Medical Board investigators. To cooperate fully by surrendering her license and then having a complaint seeking $3 million bail is heavy handed to say the least.

A review of the Accusation (attached to the Stipulated Settlement) is detailed and shows how Medical Boards are crafting allegations against physicians for cases involving pain medication including standard of care allegations. Any physician who is being interviewed relating to the prescribing of pain medication would be well advised to never be interviewed without counsel and to be fully prepared before any interview. As part of preparation, I recommend that every physician who prescribed pain medication read this Accusation since it outlines the issues that can be raised and the need for documenting informed consent, risks/benefits, explicit treatment objectives, running CURES reports, requiring drug screens, etc.

Third, this case is heavily dependent on undercover officers. The reason that there are so many felony counts of prescribing drugs without a legitimate purpose is so they can have live witnesses in the case. Out of those 20 counts, only 2 of those counts relate to the three deceased patients. All the others related to undercover agents. Any physician who prescribes pain medication needs to be well aware that undercover officers will regularly be sent to their practice.

This case is just beginning and it will take a year or more to resolve these serious allegations. The potential sentence is up to 45 years if she were convicted on all counts but it seems that the DA's Office has charged the murder counts in order to extract a plea agreement on the lesser counts.

Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation. Any questions or comments should be directed to Tracy Green, a very experienced physician attorney and criminal physician attorney at tgreen@greenassoc.com. The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing licensed health care providers and in criminal related matters in California and throughout the country. Their website is: http://www.greenassoc.com/

Wednesday, March 7, 2012

A recent home health care fraud case out of the Northern District of Illinois, United States v. Gabriel, et al., shows how these cases can grow over time and how referring physicians, nurses and non-medical employees are being added as defendants to these cases An FBI press release has the details of the case.

In February 2011, Jacinto "John" Gabriel, Jr. was arrested and charged with a 15-count Indictment in the Northern District of Illinois relating to his alleged control and hidden ownership of two home health agencies: Perpetual Home Health, Inc. and Legacy Home Healthcare Services which purportedly billed for home health services that were not medically necessary or were never provided. Mr. Gabriel plead not guilty and is out on bond. The two home health agencies allegedly received over $34 million over the years and restitution of $20 million is sought from the defendants.

A year later, March 7, 2012, 11 new defendants were added by way of a superseding Indictment. The details of the filing can be viewed in the press release but here is what is notable about the superseding Indictment.

First, the case has grown in scope over the year while the government has had time to investigate.

Second, two older physicians (ages 71 and 72) were charged with health care fraud and kickback counts. It appears that these physicians ordered the home health for the patients and at least one of them allegedly received kickbacks from the home health agencies.

Third, four nurses were charged but all of them were either part owners of the home health agencies or the daughter of the original defendant.

Fourth, in an unusual move, lower level employees are being added. In this case two data entry employees and one quality assurance employee were added as defendants for falsifying patient records, among other things. In the past, these employees were treated as witnesses and not charged. However, the government is being more aggressive which should serve as a warning to employees working at medical businesses where there is a suspicion of fraud or abuse.

It was alleged that the owners and controlling defendants of the home health care agencies authorized kickback payments of of $200 to $800 to employees for each patient referred and enrolled in home health. There are also money structuring (check cashing allegations of checks under $10,000), money laundering and income tax counts.

Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation. Any questions or comments should be directed to Tracy Green, a very experienced health care fraud attorney and kickback attorney at tgreen@greenassoc.com. The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing licensed health care providers in criminal matters in California and throughout the country. Their website is: http://www.greenassoc.com/

Saturday, March 3, 2012

Ten Important Guidelines On Completing Board Applications And Renewals

When you are applying for a license (or renewing one) from the California Medical Board, State Bar, Department of Real Estate, Department of Pharmacy, Board of Registered Nursing or any other state agency or any employer that is required to report to state agencies or databanks (such as hospitals), all applicants need to remember the following basic guidelines:

1. Start the licensure process early especially if you believe you may have some background issues that require explanations. It can take months to become licensed and the Board will not hurry the process just because you have a job waiting. The investigation process can take time and staff cutbacks in government agencies often mean lengthier delays.If you think you may have difficulty getting licensed, start early (while you are in school even) and hire an experienced administrative lawyer to assist you with drafting the explanations and putting together a package for the Board. Even hiring a lawyer for a two hour consultation will serve you better than relying on the well-meaning but uninformed advice of friends, students or other professionals.

2. When you sign the application, you are certifying that all the information is accurate. In most of the applications and renewal forms you are declaring under the penalty of perjury that all the information is true and correct. This means it is as if you are under oath and promising to tell the truth. In other words, you must be truthful in completing the application.

3. If you do not complete the forms or questions accurately, your application can be denied on the sole ground that you falsified the application and/or intended to deceive the agency. We have had many clients who came to us after they failed to disclose information in an application and had their license application denied. If there are background issues that will come up in the LiveScan, you are better served in disclosing those matters in the best way possible.

4. Take the questions literally and do not rely on your own interpretation. Err on the side of being cautious. Be overinclusive and not underinclusive. Do not rely on friends or classmates for advice. Go to a professional especially where you believe you may have problems getting licensed due to a prior criminal conviction or prior alcohol or drug abuse problem.

5. Some of the questions are vague or ambiguous. It is not unusual for board questionnaires to be somewhat ambiguous or to be subject to some level of subjective interpretation. It is always safer to err on the side of caution and full disclosure. If an applicant is unsure as to the interpretation of a question he or she should answer it both ways. We also suggest having an experienced licensing attorney review your application for language and explanations to ensure that it is accurate but setting forth your position in the best light. The time and expense is well worth the chance of being denied a license for intentionally misleading the licensing board.

For example, let us take a question from the Nursing Board's actual application:

Question: "Have you ever had disciplinary proceedings against any license as a RN or any health-care related license or certificate including revocation, suspension, probation, voluntary surrender, or any other proceeding in any state or country? If yes, please provide a detailed written explanation, including the date and state or country where the discipline occurred."

Ambiguity: The first part of the question asks about any "disciplinary proceedings" while the second half asks "where the discipline occurred." The question might seem to assume that it is only interested in cases where actual discipline was imposed.

Do NOT make this assumption. The safer and better course to follow is to set forth any actual accusations or disciplinary charges and if the case was dismissed or no discipline was imposed to state those facts.

6. Criminal Charges. The question that we see applicants harm themselves the most is the one regarding criminal charges. The disposition of criminal cases is often ambiguous and a review of original records is often necessary to know the proper way to answer these questions. We have had many cases where the applicant's failure to disclose the charge accurately resulted in denial of the license or the granting of a restricted license or probation being imposed and we are hired to handle the appeal or disciplinary charge. If the person had answered the question accurately -- the license would have been issued but the perceived deception created significant problems.

Case Example: Physician finished residency and applies for privileges at Los Angeles Hospital. He had disclosed an old driving under the influence conviction to the Medical Board. however, when he applied for privileges at the hospital, he did not disclose the conviction. The hospital ran a background check and denied his application for privileges on the ground that he was deceptive on his application. Under the law, the hospital was required to report the denial of privileges to the Medical Board of California. By the time we met him, the Medical Board filed an Accusation and this young physician had already entered into a Stipulated Settlement and Decision to be on probation for 3 years.

Here is a sample criminal charge question:

"Have you ever been convicted of any offense other than minor traffic violations? If yes, explain fully as described in the applicant instructions. Convictions must be reported even if they have been adjudicated, dismissed or expunged or if a diversion program has been completed under the Penal Code or Article 5 of the Vehicle Code. Traffic violations involving driving under the influence, injury to persons or providing false information must be reported. The definition of conviction includes a plea of nolo contendere (no contest), as well as pleas or verdicts of guilty."

Thus, if someone had been charged and there was a deferred entry of judgment where the case would be dismissed upon the completion of community service and having no further arrests for one year, it will probably be necessary to disclose that charge. Err on the side of caution.

7. Make sure the application is complete to avoid unnecessary delays. Read and re-read the requirements and have someone else review it for errors or omissions.

8. Rehabilitation. If in your youth or past, you had some criminal charges, discipline from employers or agencies, drug/alcohol issues, mental health issues or other life experiences that contributed to the prior conviction/discipline -- your application should reflect your rehabilitation and why you are not the same person that committed those errors and why it is unlikely that these issues will arise again. We often go above and beyond what is required in the application in order to increase the applicant's chances of having his or her application approved.

We are often hired to assist a person in drafting the best application possible and creating a package that will help someone get licensed where there are past criminal convictions and disciplinary problems. The wonderful thing about the United States is the people can have second or even third acts in their life. The key is acknowledging the past problems and showing why you have earned the right to a license and there is a minimal likelihood that it will ever occur again.

Applicants must also submit a description of the rehabilitative changes in their life, which would enable them to avoid future occurrences. To make a determination in these cases, the Board considers the nature and severity of the offense, additional subsequent acts, recency of acts or crimes, compliance with court sanctions, and evidence of rehabilitation.The burden of proof lies with the applicant to demonstrate acceptable documented evidence of rehabilitation. We create a package where we show that the applicant has met his or her burden.

Examples of rehabilitation evidence include, but are not be limited to:

• Detailed letter from applicant attached to the application describing the events at issue (prior criminal or disciplinary charges) and rehabilitative efforts or changes in life to prevent future problems.

• Letters of reference on official letterhead from employers, instructors, professionals in the same field, professional counselors, parole or probation officers, or other individuals in positions of authority who are knowledgeable about your rehabilitation efforts.

• Letters from recognized recovery programs and/or counselors attesting to current sobriety and length of time of sobriety, if there is a history of alcohol or drug abuse.

• Proof of community work, schooling, self-improvement efforts.

• Court-issued certificate of rehabilitation or evidence of expungement, proof of compliance with criminal probation or parole, and orders of the court.

• Support letters from others in the community who are knowledgeable about rehabilitation efforts, current skills and why they are supporting your application even though they know about the prior criminal or disciplinary case.

We help outline, draft and coordinate the letters and entire application package and provide an objective view of what the typical agency or bureau wants in the application. Often the applicant fails to realize that although there are many current licensees with problems and issues, in order to be licensed with some adverse history he or she needs to jump a hurdle and prove that he or she is not a disaster waiting to happen and that instead, will be a credit to the profession.

9. Do not attempt to persuade Board representatives of your position. We have had clients who failed to submit a well drafted application package but decided to telephone Board representatives or members or write letters to the Governor to lobby their case. The best step is to prepare the application package as professionally as possible seeking advice of counsel if needed. Any meetings with Board representatives should be with counsel present. Finally, be careful of trying to lobby and persuade Board members, representatives or other political officials of your position unless you are doing it with the advice of an experienced professional. It can backfire and the Board representatives often take notes that do not aid your case.10. Maintain a copy of the application you submit. We represent clients who failed to keep copies of their submissions. This makes it difficult to know what went wrong with their application.Conclusion: Your application and/or renewal application is one of the most important documents you can complete. If there are some areas of your past that are troublesome or cause you concern, it is well worth hiring an experienced attorney (even if only for a few hours) to assist you in handling these issues such as ordering the court records and drafting the explanation in an attachment. Remember the value of your license over the course of your lifetime. It is a very valuable asset often worth millions of dollars.

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DISCLAIMER: Green & Associates' articles and blog postings are prepared as a service to the public and are not intended to grant rights or impose obligations. Nothing in this website should be construed as legal advice. Green & Associates' articles and blog postings may contain references or links to statutes, regulations, or other policy materials. The information provided is only intended to be a general summary. It is not intended to take the place of either the written law or regulations. We encourage readers to review the specific statutes, regulations, and other interpretive materials for a full and accurate statement of their contents and contact their attorney for legal advice. The primary purpose of this website is not the commercial advertisement or promotion of a commercial product or service and this website is not an advertisement or solicitation. Anyone viewing this web site in a state where the web site fails to comply with all laws and ethical rules of that state, should disregard this web site.

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We are attorneys who specialize in vigorously representing individuals, businesses and licensed professionals in administrative, civil, business, regulatory, health care and criminal matters. All communications are attorney-client privileged - even initial consults. Lawsuits and legal problems can cause great stress for the most sophisticated business people and individuals. Having a trusting relationship with our clients helps them see that they will get through it no matter how difficult it may seem at the moment.

We advise businesses and individuals on compliance plans and structuring businesses to comply with governmental regulations. As needed, we conduct internal and external investigations and audits, and tailor our representation for each individual client whether a business or individual. We are non-judgmental and experienced which means we have seen it all in over 25 years of practicing law.

We believe it is critical that clients understand their legal issues, set goals, identify and understand any obstacles and that we work as a team to address, prevent and solve any legal problems including civil, administrative or criminal investigations and cases.

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The office is located on the southwest corner of 6th & Flower in downtown Los Angeles. (The Standard Hotel is on the northeast corner of 6th and Flower.) The address is 800 West Sixth Street, Suite 450, Los Angeles, CA 90017. It is close to the interchange at the 110 and the 10 freeways.

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